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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 24820/2024
DATE : 2024.11.28
In the matter between
CANDI AND COMPANY (PTY) LTD Applicant
and
NURAAN RHODE Respondents
AND 4 OTHERS
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JUDGMENT
VAN DEN BERG , AJ :
This is an urgent application that comes before the Court on
28 November 2024 after being launched on
19 November 2024.
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In essence, the applicant applies for the enforcement of a
restraint of trade agreement against the first to fourth
respondents ; the fifth respondent being the first respondent's
current and new employer.
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I have heard Mr Fehr and Mr Sm it and find the matter urgent.
The second to fourth respondents are qualified hairdressers,
while the first respondent is a master hairdresser. All of them
were employed by the applicant, who operates under the
name ‘ Sorbet ’, a well -known hairdressing and beauty
franchise. The respondents have now taken up employment
with the fifth respondent, who also operates a hair salon.
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In the founding affidavit, the applicant asserts that there
exists a protectable interest regarding clause 11.5 of the first
and fourth respondents' employment contracts, warranting
the granting of an order to protect the applicant from unlawful
competition by the first to fourth respondents in violation of
the restraint of trade agreement with the applicant.
Mr Sm it, in argument, submits that there is no protectable
interest and that the first to fourth respondents should be
allowed to apply their skills acquired in freely earning an
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income. In this regard , he relied upon the authority in
Experian South Africa (Pty) Limited v Haynes and Another,
as well as Massmart Holdings Ltd and Others v Vieira and
Others, in which the following was stated:
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"Restraint agreements are enforceable
unless they are unreasonable. In general
terms the restraint will be unreasonable if it
does not protect some proprietary interest
of a party seeking to enforce a restraint. In
other words, a restraint cannot operate only
to eliminate competition."
In Basson v Chilwan and Others it was held:
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"The protectable interest and the
reasonableness thereof will be determined
with reference to four factors.
1. Does the one party have an interest that
deserve protection at the termination of
the employment ?
2. If so, is that interest threatened or
prejudiced by the other party.
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3. Does such interest weigh qualitatively
and qualit atively against the interest of
the other party not to be economically
inactive and unproductive ?"
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And lastly:
"4. Is there an aspect of public policy
having nothing to do with the
relationship between the parties and
which requires that a restraint be
maintained or rejected."
The applicant seeks final relief. The principles and
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application of the Plascon Evans test in determining factual
disputes are well -established. The respondents’ version
cannot be rejected as inherently false or contrived.
In their answering affidavit, the first to fourth respondents
contend that they have not solicited any of the applicant's
clients and deny the allegations in the founding affidavit. The
first respondent disputes that she took down the applicant’s
clients' names before leaving the applicant's employment .
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The respondents further contend that the restraint of trade is
unreasonable in that it would not be reasonable to prohibit
them from obtaining employment for 12 months within the 10-
kilometre radius, which includes the Atlantic Seaboard and
Cape Town CBD, as provided for in the restraint of trade
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agreement.
Mr Fehr, appearing on behalf of the applicant, referred me to
several authorities in his argument . Of most assistance to
his case is a judgment in the Eastern Cape Local Division,
Port Elizabeth , in the matter of Beautiful Youth, Health and
Beauty Clinic v Moolman. At paragraph 15 the Court refers
with approval to the submission by Mr Mullins in finding as
follows :
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"T he trade name and goodwill encompass
customer list and trade connections. I
agree. Both the trade name and goodwill
relate to knowledge and esteem outsiders
have of the applicant's business . They can
be measured by how popular the business is
to the public business connections, or the
esteem it is held by its peers, trade
connections. These interests are worthy of
protection. It has been held that the
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employee who seeks to turn their employer's
confidential information, trade or customer
connects for their benefit acts in a
reprehensible fashion."
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The applicant's founding affidavit does not make out a case,
and there is no allegation that the first to fourth respondents
are using the name ‘ Sorbet ’, that they will attract clients or
customers in the future because Sorbet trained them , or that
they will use the good name of Sorbet to solicit clients in a
reprehensible manner . The respondents’ skills as
hairdressers are neither unique nor confidential, and the
products they used as headdresses while in the applicant's
employ are also not confidential or unique.
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In light of the aforesaid, I will grant an order in terms of the
notice of motion, but not to the extent requested by the
applicant.
I do not believe that a proper case has been established
regarding a protectable interest; alternatively, I accept the
respondents' evidence and argument presented by Mr Smit
that a protectable interest has not been demonstrated to the
extent necessary to justify an order in terms of paragraphs
2, 2.1, 2.1.1, and 2.1.2 of the notice of motion.
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However, there cannot be any opposition, and Mr Sm it
correctly conceded this in his argument , to grant the relief as
formulated in paragraphs 2.1.3 and 2.2 of the notice of
motion. I will quote those paragraphs at the end of this
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judgment. In essence, what the aforesaid paragraphs
provide for is that the first to fourth respondents are not
entitled to solicit the clients of the applicant, and there can
be nothing wrong with this.
WITH REGARD TO THE ISSUE OF COSTS:
The applicant has been in part successful with obtaining
relief , however, I am not convinced that in essence a case
has been made out for the majority of the relief applied for.
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The applicant came before the Court seeking to enforce a
restraint of trade. the relief I am willing to grant is not the
primary focus, nor is it essentially what the applicant sought.
The applicant , in essence , sought that I enforce and prevent
the first to fourth respondents from working for 12 months
within a radius of ten kilometres of the applicant's premises.
I am not willing to grant that relief as already set out.
In the premises the following order is granted:
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[1] THE FIRST TO FOURTH RESPONDENTS ARE
INTERDICTED AND RESTRAINED FROM SOLICITING
WORK FROM ANY OF THE APPLICANT'S
CUSTOMERS TO PERFORM THE ACTIVITIES AND OR
SERVICES CONTEMPLATED IN THE EMPLOYMENT
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CONTRACTS, OR BY UTILISING THE APPLICANT'S
CLIENT LIST, OR IN PERFORMING ANY OF THE
ABOVE ACTIVITIES.
[2] THE APPLICANT IS ORDERED TO PAY THE COST OF
THE APPLICATION ON SCALE A.
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__________________________
VAN DEN BERG , AJ
ACTING JUDGE OF THE HIGH COURT
APPLICANT ADV C FEHR
RESPONDENTS ADV E SMIT